Google Wins Round in California Gender-Pay Class Action

A judge in San Francisco dismissed a class action against Google alleging that the search giant placed women in lower-ranking jobs and paid them less than their male counterparts. But it's not the end of the suit.

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Google headquarters, Mountain View, California

Updated 6:45 AM PT Wednesday with comment from lawyer for plaintiffs

SAN FRANCISCO — A state court judge in San Francisco has dismissed a class action against Google alleging the search giant placed women in lower-ranking jobs and paid them less than male counterparts while giving plaintiffs leave to amend their complaint.

San Francisco Superior Court Judge Mary Wiss ruled in an order Monday that lawyers at Altshuler Berzon and Lieff Cabraser Heimann & Bernstein failed to present facts establishing that there is an “ascertainable” class of women affected by Google’s allegedly discriminatory hiring and pay practices.

“Here, plaintiff’s proposed class is defined as ‘all women employed by Google in California,’” Wiss wrote, granting Google’s demurrer to the complaint. “This class definition does not purport to distinguish between female employees who may have valid claims against Google based upon its alleged conduct from those who do not, and is therefore overbroad.”

In addition, Wiss said none of the three former female Google employees presented as lead plaintiffs in the case had adequately made claims under the California Equal Pay Act. For two of the plaintiffs—Kelly Ellis and Kelli Wisuri—the judge called their allegations of performing “substantially equal or similar work” as their male counterparts “conclusory.”

Wiss said allegations relating to Ellis, a former software engineer, wrongly focused on the qualifications and skills required to perform a job, rather than the job itself.

The judge was also critical of the plaintiffs lawyers’ reliance on an analysis of compensation data by a division of the Department of Labor that has investigated Google’s pay practices, saying they did not explain whether the study made comparisons against “men who perform substantially similar work under similar working conditions.”

James Finberg of Altshuler Berzon, one of the lead attorneys for the plaintiffs, said in an email Tuesday evening they intend to file an amended complaint by Jan. 3 “that addresses the court’s concerns and makes clear that Google violates the California Equal Pay Act by paying women less than men for substantially equal work in nearly every job classification.”

The lawsuit was filed not long after the release of an internal memo written by a Google engineer who, among other things, argued that women are not biologically suitable for work in the technology industry and decried Google’s efforts to level the playing field. The engineer, James Damore, was fired after the memo was made public and went viral.

The case, Ellis et al v. Google, accuses the Mountain View company of paying women at all levels less than men in comparable positions, assigning women lower-tier jobs with lower pay and compensation than men, and promoting women less frequently. The lawsuit also claims Google failed to correct these issues even after being made aware of them.

Google is represented by Paul Hastings partners Barbara Brown and Zachary Hutton in the case. They had called the class claims “generic” and said the number of would-be class members was “a moving target” in papers moving to dismiss the case.

Gina Scigliano, a spokeswoman for Google, said in a statement: “As we said before, we work really hard to create a great workplace for everyone, and to give everyone the chance to thrive here. If we ever see individual discrepancies or problems, we work to fix them.”

Ben Hancock

Ben Hancock is a San Francisco-based reporter covering litigation, technology, finance, and the future of law. He writes a weekly news briefing covering those topics called "What's Next." Ben can be reached via email at bhancock@alm.com, or on Twitter: @benghancock

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